Smith v State of Queensland (Queensland Health)
[2024] QIRC 136
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- Smith v State of Queensland (Queensland Health)[2024] QIRC 136
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Smith v State of Queensland (Queensland Health)[2024] QIRC 136
Smith v State of Queensland (Queensland Health)[2024] QIRC 136
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION | Smith v State of Queensland (Queensland Health) [2024] QIRC 136 |
PARTIES: | Smith, Robert (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/251 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 29 May 2024 |
HEARING DATE | 13 March 2024 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary finding decision – where the appellant is employed by the respondent as a casual Operational Services Officer – where it is alleged that the appellant is guilty of misconduct – where the appellant appeals the substantiation of allegation one – where the matter is set aside – where the decision is returned to the decision-maker |
LEGISLATION AND OTHER INSTRUMENTS: | Code of Conduct for the Queensland Public Service 2011 (Qld) cl 1.5 Directive 05/23: Discipline 2023 (Qld) Industrial Relations Act 2016 (Qld) ss 562B, 562C(1) Public Sector Act 2022 (Qld) ss 91(1), 91(5), 129, 131, 133(d), Ch 3, Pt 8, div 3 |
APPEARANCES: | Mr D. Marr, Australian Workers Union of Employees Queensland (AWU) for the Appellant Ms J. Leverett and Ms L. Caswell, Wide Bay Hospital and Health Service for the Respondent |
Reasons for Decision
Introduction
- [1]Mr Robert Smith ('the Appellant') has been employed by the State of Queensland (Queensland Health) ('the Respondent') as an Operational Officer (OO2) at the Hervey Bay Hospital since 15 February 2022. In a letter dated 12 December 2023, Ms Debbie Carroll, Chief Executive Officer ('decision-maker') of the Wide Bay Hospital and Health Service ('WBHHS') wrote to Mr Smith to inform him that a disciplinary finding had been made against him regarding one allegation, further particularised by subparagraphs ('Allegation one').
The decision
- [2]Allegation one and its particulars are set out on the second page of the letter:
Allegation one
On 3 June 2023, at approximately 20:31, you physically assaulted Patient UR 020805 during your interaction through the following actions.
- On 3 June 2023 you were rostered to work 14:00 to 22:00.
- At approximately 20:31:35 you enter the patient waiting room, Emergency Department, Hervey Bay Hospital wheeling patient UR 020805.
- At approximately 20:31:44 you manoeuvre the wheelchair to place the patient next to red waiting area chairs, the patient reaches out and grabs the waiting room chair.
- Between 20:31:47 and 20:31:55 you attempt to remove the patients [sic] grip of the chair, you jolt the wheelchair backwards in an abrupt action, immediately after the first 'Pull' you repeat the action of jolting the wheelchair backwards resulting in the patient falling from the wheelchair onto the floor.
- You intentionally tipped the patient from the wheelchair resulting in the patient falling from the wheelchair and landing heavily on the floor.
- At approximately 20:32:09 you leave the waiting room with the empty wheelchair, as you leave you intentionally ran over the patient's foot with the empty wheelchair.[1]
- [3]The decision-maker informed the Appellant that following consideration of all information available to her, including Mr Smith's response, she had determined that Allegation one was substantiated on the balance of probabilities. The decision-maker said that her decision was made on the basis of the Appellant's partial admissions that some of the facts of the matter were accurate and that, in her view, the evidence supports the allegation.[2]
- [4]The decision-maker further informed Mr Smith that on the basis of her finding in relation to Allegation one, she has determined that pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld) ('the PS Act'), that Mr Smith is guilty of misconduct, that is inappropriate or improper conduct in an official capacity, within the meaning of s 91(5)(a) of the Industrial Relations Act 2016 (Qld) ('the IR Act').[3]
- [5]On page two of the letter, the decision-maker sets out the findings which support her decision that Allegation one is substantiated and gives rise to grounds for discipline. The decision-maker refers to the Appellant's various admissions, partial admissions, and denials. She also makes several references to the CCTV footage of the events. Ms Carroll discusses contemporaneous statements of Mr Smith and other witnesses including file notes detailing the matter.
- [6]The decision-maker says that she has reached her own conclusions independently regarding Allegation one based on the evidence available to her. Ms Carroll notes that the CCTV footage and original incident report provide a greater weight of evidence than the personal opinion of a witness, Mr Hancock.[4]
- [7]The decision-maker acknowledges the patient's actions and manner towards Mr Smith, however she says that this does not negate Mr Smith's responsibility to conduct himself in a professional manner and to demonstrate respect for all persons in accordance with cl 1.5 of the Code of Conduct for the Queensland Public Service ('the Code') and the WBHHS values. The decision-maker says that Mr Smith's conduct was 'significant and serious' in that his actions created a risk to the safety of a patient.
- [8]The decision-maker concludes that upon considering the Appellant's response, and for the reasons she has provided, she does not accept that Mr Smith had a reasonable excuse for his actions as described in the particulars of Allegation one. The decision-maker says that the actions as described in subparagraphs (d) – (f) of Allegation one were assault and that Mr Smith had treated the patient in an inappropriate and degrading manner.
The matter was heard on the papers following a hearing to view the CCTV footage and hear oral submissions about the footage
- [9]The parties filed written submissions on 16 January 2024 and 30 January 2024. In those submissions, the Appellant's representatives contended that 'the Commission should have regard to the extrinsic material related to this matter including the CCTV footage…'.[5] In an attachment to its submissions of 30 January 2024, the Respondent suggested that the matter be mentioned to address the procedural issue of facilitating the Commission's viewing of the CCTV footage.
- [10]On Wednesday 13 March 2024, the parties attended the Commission for a short hearing to enable the CCTV footage to be watched several times and for the parties to have the opportunity to bring any matters specifically relevant to the CCTV footage to my attention. I was assisted by viewing the footage and I have reviewed submissions made by the parties at that hearing by way of the transcript of proceedings.
- [11]
- [12]In hearing the decision on the papers and considering the submissions received after the hearing, I determined that I would be assisted by a further viewing of the CCTV footage. I requested that the footage be provided and the Respondent did so via post. There was a short delay while awaiting delivery of the footage and then gaining access to the files. I confirm that the footage provided to me is the same footage that was viewed in the Commission.
- [13]I have considered all submissions and material available to me, even if I do not specifically mention it in these reasons for decision.
Is the Appellant entitled to appeal?
- [14]Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision. Section 129 defines a fair treatment decision as 'a decision a public sector employee believes is unfair and unreasonable'.
- [15]Section 133(d) provides that a public sector employee aggrieved by a decision may appeal against a fair treatment decision. The appeal period is 21-days after the decision was given. The decision was received on 6 December 2023 and the appeal was lodged in the Industrial Registry on 21 December 2023.
- [16]I am satisfied that the decision is one that may be appealed against, that Mr Smith is a person who may appeal against the decision and that the appeal was lodged within the statutory time-limitation period.
Appeal principles
- [17]Section 562B of the IR Act provides that the appeal is to be decided by 'reviewing the decision appealed against' and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[9]
- [18]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- confirm the decision appealed against; or
…
- For another appeal – set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Mr Smith's reasons for appeal and submissions[10]
- [19]Mr Smith's Form 89 Appeal notice is accompanied by a schedule which briefly outlines his reasons for appeal and seeks that the Commission set aside the decision. The basis of the appeal is:
- The Appellant contends that the Respondent's decision to substantiated [sic] the allegation against the Appellant was unjust and unreasonable by virtue of:
- The Appellant denying that he deliberately (i.e. with intent) 'tipped' or 'jolted' the patient's wheelchair, but rather the incident was an accident brought about by the patient's own antagonistic & dissident behaviour.
- The unreasonable conclusions drawn by the Respondent decision maker with respect to the patient's behaviour and the overall context of the incident.
- The evidence not supporting the conclusions reached by the Respondent.
- The unjust and unreasonable reluctance by the Respondent to consider any evidence that may have actually assisted the Appellant's case.[11]
- [20]Mr Smith expands on his reasons for appeal set out above at [19] in his submissions filed 16 January 2024. Mr Smith repeats that the substantiation of Allegation one was unfair and unreasonable. Mr Smith denies the allegation and says that the evidence relied upon does not support the conclusions drawn. Attached to Mr Smith's submissions are a number of exhibits including incident reports, file notes, several still images taken from the CCTV footage, the patient complaint, Mr Smith's role description, a task analysis, and an organisational structure for the WBHHS.
- [21]The Appellant says that the primary piece of evidence the Respondent relies upon is an incident report prepared sometime after 3 June 2023, the date the incident is alleged to have occurred.
Incident report evidence
- [22]The Appellant says that although the incident is alleged to have occurred on 3 June 2023, the principal witness relied upon by the Respondent, Mr Klay Hancock, prepared a file note about the incident on 27 June 2023, some 24 days after the actual incident. The Appellant says that this delay is unexplained and 'somewhat undermines the (Respondent's) urgency and/or seriousness of the allegation'.
- [23]The Appellant says that following Mr Hancock's file note, are still images taken from the CCTV footage of the incident. The Appellant says the still images merely show him wheeling the patient with commentary from someone appearing as captions alongside time stamps for each image.
- [24]Mr Smith points out that the commentary accompanying the photos is useful in understanding the unreasonableness of the decision-maker as many of the 'observations' or commentary are not reflected in the still images. The Appellant says that, most notably, the photographs do not reflect any incline of the front portion of the wheelchair that one might expect to be seen if it had been 'tipped', 'tilted' or otherwise manoeuvred in a way so as to cause the person sitting in it to fall out. Mr Smith also says that his arms were not in a position that would support the conclusion that the patient was tipped out of the wheelchair.
- [25]The Appellant says that the photos do show that there was 'some sort of commotion' that occurred at the end of the events in question and that the patient appears to have required assistance from at least two people to aid him onto a waiting room chair.
- [26]The Appellant says that it is not in dispute that the patient reached out in front of himself to grasp the arm of a waiting room chair.
- [27]The Appellant says it is his 'case theory' that the incident was actually caused by the patient who is 'very obviously disgruntled, recalcitrant and otherwise insubordinate in every way that can be described'. In support of this assertion, Mr Smith points to evidence included in the incident report that reflects the patient's behaviour, including the patient's own statement of events.
- [28]The Appellant says it is important to note the content of the complaint the patient made. The Appellant says that in this complaint, the patient seemingly has a grievance about every single staff member he had an interaction with during his time at the hospital, including the doctor who treated him, the triage nurse and a 'large security guard with dark skin'. The Appellant says that, interestingly, of the staff members the patient came into contact with, he is the only person not included as part of the list, further, the patient makes absolutely no reference to the incident where he fell out of the wheelchair. According to Mr Smith, the only subject of the patient's aggrievement with being forcibly placed into the wheelchair was a person who is not the Appellant.
- [29]The Appellant says that if no other person involved in the matter or complained about by the patient has been the subject of a disciplinary show cause process, then Mr Smith is being discriminated against pursuant to differential treatment.
CCTV footage
- [30]The Appellant says that he does not deny his intention to move the wheelchair backwards. However, contrary to the finding made by the Respondent, he denies that the patient was ever tipped out of the chair or, in the alternative, he denies that he ever had any intention to tip the patient out of the chair.
- [31]Similarly, the Appellant says that contrary to the finding made by the Respondent, he denies that he ran over the patient's foot with the wheelchair or, in the alternative, he denies that he ever had any intention to do so.
- [32]The Appellant says that the CCTV footage watched in the Commission on 13 March 2024 does not support the Respondent's claims that Mr Smith had intentionally tipped the patient out of his chair or that he had intentionally run over or made contact with the patient's foot.
- [33]The Appellant says that an analysis of the video footage illustrates that there was no 'lifting motion' and that in the absence of a lifting motion, the allegation that the patient had been tipped out of the wheelchair cannot be fairly and reasonably substantiated.
- [34]The Appellant notes that the decision-maker determined that he had intentionally made contact with the patient's foot, however the allegation against him was that he had run over the patient's foot. The Appellant says the finding that he had intentionally made contact with the patient's foot was not fair and reasonable as that characterisation of the allegation was not put to him. Further, Mr Smith points out that the decision-maker states in the letter, 'I am unable to ascertain if you ran over the patient's foot'.
- [35]With regard to both findings, the Appellant says no evidence has been provided by the Respondent to support its statement that it made the findings in accordance with the Briginshaw v Briginshaw ('Briginshaw')[12] standard as required by Directive 05/23: Discipline ('the Discipline Directive').[13] The Appellant says this is crucial, as he has provided 'a plethora' of other credible reasons during the disciplinary process to explain the circumstances of these incidents.
- [36]The Appellant says that the finding that he had intentionally run over, or intentionally made contact with the patient's foot is predicated on the Respondent's claim that Mr Smith had 'ample room to push the chair in another direction as to avoid the patient's foot'. The Appellant says that this claim is mistaken and is not supported by the video evidence. The Appellant says the video evidence suggests that the passageway was narrow and Mr Smith would have had limited room to manoeuvre the patient.
- [37]Following the viewing of the CCTV footage at the Commission, Mr Smith's representative submitted that as well as the patient reaching out and attempting to strongly grip onto a chair, at the same time the wheelchair is in motion, he also makes some motion that he intends to get out of the chair and as a result, falls out of the wheelchair.[14] Mr Smith's representative submits that the patient can be seen to be quite forcefully grasping the chair next to him and that as he is doing that, Mr Smith attempts to manoeuvre the chair backwards. The purpose for this, says Mr Smith's representative, is to ensure that the walkway is not obstructed at a narrow point.[15]
- [38]The Appellant's representatives point to the above observations and submit that the Respondent is unable to establish, on the balance of probabilities, that Mr Smith's actions were wilful or deliberate. The Appellant's representatives argue that the fall from the wheelchair occurred as a result of the patient's own conduct in grabbing the chair and attempting to get out as it was being manoeuvred.[16]
- [39]The Appellant's representatives say that the issue of whether Mr Smith's actions were wilful or deliberate is important in circumstances where the allegation is that he assaulted the patient. The Appellant says that assault imports an element of intent. The Appellant points out that the CCTV footage shows the front wheel of the wheelchair turning very quickly as Mr Smith is pushing the wheelchair forward. The CCTV footage shows these matters occurring in less than a second. The Appellant notes again that in setting out the findings, the decision-maker states, 'I am unable to ascertain if you ran over the patient's foot'.[17]
- [40]In support of its submission that there was no intention, that Mr Smith did not see the patient's foot and that in fact, he did not run over the patient's foot, the Appellant notes that the CCTV footage does not show the patient reacting to this event by immediately withdrawing his foot. The Appellant submits that it does not cavil with the finding that some contact was made with the foot but it does completely dispute the matter of intent.[18] Further, the Appellant says that despite contact being made with the patient's foot, there is clearly no visible injury and the patient gets up and walks to the front desk only moments later. The Appellant says that the lack of injury to the patient undermines the Respondent's case.[19]
Characterisation as misconduct
- [41]The Appellant says that the underpinning facts of the matter do not support a finding of 'misconduct' within the meaning of s 91(5) of the PS Act.
Procedural fairness
- [42]The Appellant says the Respondent's claim in its submissions that the decision-maker afforded him procedural fairness is 'plainly not true' and that the Commission would not have needed to hold a separate hearing to view the video footage if the Respondent had not declined to provide him a copy. The Appellant says that any claim that the Respondent followed the disciplinary process outlined in the Discipline Directive should be rejected.
Respondent's submissions
- [43]By way of background, the Respondent states that on 9 June 2023, the patient lodged a consumer complaint raising concerns about the alleged physical treatment he received from a nurse and an operational services staff member (not Mr Smith). On 16 June 2023, the Nurse Unit Manager of the Emergency Department reviewed the CCTV footage and found that the concerns raised were not evidenced and all actions were deemed reasonable. However, the Nursing Unit Manager noted that there were concerns with the treatment of patient and escalated these concerns to the manager of security services.
Incident reports/statements
- [44]The Respondent sets out several statements provided by staff in relation to the issue.
- [45]Mr Hancock provided a file note dated 27 June 2023:
Got a call from ED staff to help the ED wardie to move a patient from Ambo trolley to wheelchair, because patient was being a problem and was refusing to move, but once we all got there, the patient then said youse [sic] will have to make me so me Keith and Rob picked him up and put in the wheelchair, the patient started to become vocal and one [sic] placed in waiting room the patient tried grabbing the chairs, the patient was going off at Rob calling him names and sweering [sic] So Rob parked him up in up in wheel chair then persisted to throw the wheel chair back and fourth [sic] to get patient out of chair which made him fall to ground then Rob pushed chair which ended up going over his foot.
We walked away as he got up and sat on waiting room chairs, later on we got a call to confront him again as he was now getting angry at triage nurse and was not being compliant, then persisted on name calling Rob Smith, but one of the main Dr's [sic] came out and assisted which the patient then calmed down, making us available to leave.
I found that Rob Smiths [sic] choices on this situation were very unprofessional and to have no regard for patient needs. Rob Smith should of [sic] just left him in the chair to wait in the waiting room.[20]
- [46]Mr Smith provided a statement on 6 July 2023 titled 'Security Incident Report':
On Saturday 3 June 2023 I was rostered to work 1400hrs to 2200 on the medical side of the hospital as a Wardie/Security.
At about 2030hrs I received a phone to assist Keith and Clay [sic] the Wardies/Security in Emergency Department (ED) with an aggressive patient.
When I arrived in ED I observed a male person in the corridor near Resus laying on an ambulance stretcher. Keith and Clay [sic] were standing beside the stretcher and I heard Keith inform the male person he need to come out to the ED waiting room [sic]. The male person was refusing to go to the waiting room and told Keith words to the effect that he could not walk that far. Keith informed him we would get him a wheel chair. I then went and got a wheel chair and Keith again asked the male person to get in the wheel chair. The male person was very aggressive and refusing to leave the stretcher to go to the waiting room. Keith then told the male person he would place him into the chair if he did not get in voluntarily. The male person refused again. Keith and Clay [sic] then picked up the male person and placed him into the wheel chair. Once in the wheel chair the male person refused to put his feet on the foot rest and placed one on the ground and the other straight out. I pushed the male person out in into the waiting room and he as yelling the whole time about how he was being treated.
Once in the waiting room I turned the chair so the male person could not see the administration staff. When I was beside the chairs in the front row of seat [sic] in the waiting room, I was of the opinion that there was insufficient room when a wheelchair was added to that row of seats and the wall for other persons to get pass freely. I was going to place the male person on the end of row 3 as the room widens the further you go back. As I was moving the male person backwards in the wheelchair he was yelling out and he grabbed the back of the chair in row two and slipped off the chair onto the floor. Keith picked up the male person and placed him on the seat. As I went to push the wheelchair back to the ward, I felt resistance to the front wheel. I stopped pushing and the male person was yelling out I had run over his foot. He was also yelling at the female person sitting the [sic] waiting room to video the incident. The male person must have moved his foot in front of the wheel as his foot was not outside the chair when Keith placed him in the seat.
I then took the chair back into the ED area. Keith, Clay [sic] and I went to the security room to monitor the situation on the security cameras. A short time later the male person got up and walked over to the administration staff and began raising his voice. Keith, Clay [sic] and I went to the security room to monitor the situation on the security cameras. A short time later the male person got up and walked over to the administration staff and began raising his voice. Keith Clay [sic] and I went out to make sure the male person did not assault any of the staff. The staff member was trying to calm the male person down. A short time later a doctor attended and after talking to the male person who was also yelling at the doctor and would not listen to what the Doctor was saying. The male person was eventually taken into the rapid assessment area. I returned back to the medical side of the hospital and had no further interaction with the male person.[21]
- [47]On 14 July 2023, Mr Cartmell provided a Security Narrative in relation to the 3 June 2023 incident the subject of Allegation one:
Called to assist with a non-compliant person in the QPS ramp area, when I attended the person was abusing the nurse, a doctor was trying to talk to the person but he was not listening, the doctor asked him to get off the ambulance trolley onto a wheelchair and wait in the Ed [sic] waiting room until a bed was available, the person then abused the doctor saying he just wanted to be admitted, the doctor asked me if he should call a code black I informed him that I had already called for assistance.
When the wardsmen Klay Hancock, Rob Smith arrived the doctor asked us to take the person to the ED waiting room we got a wheelchair I asked the person to get into the wheelchair repeatedly the person said we would have to physically remove him from the trolley, at this time I lifted him from the shoulders and Klay lifted him by the legs and Rob positioned the wheelchair, once in the wheelchair we took the person out to the waiting room where the partner was waiting, the person immediately called to his partner to record what was happening Rob pushed the wheelchair past the first row of chairs and turned to position him next to the second row the person was grabbing at the chair as Rob tried to position him next to the waiting room chairs wheelchair [sic] to position him and fell out of the wheelchair, we picked him up and placed him in the waiting room chairs and went to leave [sic] I heard the person complain that we had run over his foot with the wheelchair, we moved out into the triage area to wait and monitor the person who then immediately stood up and walked to the desk.
At this time a second Doctor came to attend to the person and once again informed them that would [sic] have to wait until a bed was available, the person then went into the family room in the waiting room to wait and we stood down.[22]
Disciplinary process
- [48]The Respondent notes that by letter dated 20 October 2023, Mr Smith was asked to respond to the allegation. The Respondent sets out the particulars of the allegation (these are already set out above at [2]).
- [49]The Respondent says that Mr Smith was provided with all relevant materials to enable him to respond and lists:
- 03.06.2023 Security incident report 030623 completed by Klay Hancock
- 09.06.2023 Email consumer complaint received through clinical governance (redacted).
- 27.06.2023 Klay Hancock file note regarding incident on 3.6.2023
- 06.07.2023 Robert Smith Incident Report/statement 06/07/23
- 14.07.2023 Keith Cartmell provided a Security Narrative
- Relevant screen shots for the time period 20.30 - 20:32
- Role description – Porter
- Chapter 3, Part 8, Division 3 of the Public Sector Act 2022
- Code of Conduct for the Queensland Public Service
- Public Sector Commission Discipline Directive 05/23
- Human Resources Policy E10- Discipline.[23]
- [50]The Respondent says that the full CCTV footage from 3 June 2023 was made available for Mr Smith to review and he reviewed it on several occasions.
- [51]Mr Smith had fourteen days to respond to the first show cause letter. On 10 November 2023, the Appellant's representatives sought an internal review of the process and an extension of time to respond, both of which were granted.
- [52]On 30 November 2023, the Appellant's representatives responded to the first show cause letter on his behalf. After independently and carefully considering the material including Mr Smith's responses, the decision-maker, by letter dated 12 December 2023, set out her findings and determined that pursuant to s 91(1)(b) of the PS Act, Mr Smith was guilty of misconduct, that is inappropriate or improper conduct in an official capacity, within the meaning of s 91(5)(a) of the PS Act.
CCTV Footage
- [53]The Respondent says that the submissions made by Mr Smith's representative regarding the mechanics of the chair, whether the patient had moved his leg and whether he sustained an injury are 'irrelevant considerations'. The Respondent says its' 'focus is more on the actions taken by the appellant in terms of the physical movement of the chair and the like.'[24]
- [54]The Respondent points out that the decision-maker did not only have regard to the CCTV footage but also considered Mr Hancock's eyewitness statement.[25]
The finding of misconduct per s 91(1)(b)
- [55]The Respondent says that the alleged misconduct occurred on 3 June 2023 while Mr Smith was on duty. The specific actions in question, which the Respondent says are evidenced by the CCTV footage and witness statements, include:
- Abruptly jolting the wheelchair backwards, causing the patient to fall to the floor;
- Intentionally tipping the patient from the wheelchair, resulting in the patient falling and landing heavily on the floor; and
- Intentionally running over the patient's foot with the empty wheelchair while leaving the waiting room.
- [56]
- [57]The Respondent says that each of these actions if proven would constitute inappropriate and improper conduct in an official capacity and satisfy the definition of misconduct under s 91(5)(a) of the PS Act. Specifically, and regarding Coleman, the Respondent says:
- –The Appellant’s conduct represents a clear and deliberate departure from the accepted standards of care and professionalism expected of a public service employee, particularly in a healthcare setting.
- –The Appellant’s actions demonstrate a level of negligence that goes beyond mere carelessness, suggesting a serious disregard for the patient's well-being and safety, to the point of indifference.
- –The Appellant held a position of trust and responsibility. His actions constitute an abuse of the privilege and confidence placed in him as a public service employee.[28]
- [58]The Respondent says that the appropriate disciplinary process was followed and that Mr Smith's response was considered before a determination was made that on the balance of probabilities, Mr Smith was guilty of misconduct. The Respondent submits that the decision was both fair and reasonable.
Consideration
- [59]I have summarised the decision appealed against from paragraphs [2]–[8]. I also note that the Respondent has made reference to the incident reports of Mr Smith, Mr Hancock and Mr Cartmell above at [45]–[47].
Incident report of Klay Hancock
- [60]In his response to the show cause notice, Mr Smith suggests to the decision-maker that Mr Hancock was 'coerced by parties unknown to make the file note dated 27 June 2023, some 3 weeks after making the first incident report'. Mr Smith notes that Mr Hancock wrote the first incident report on behalf of himself and the other two Operational Services Officers, Mr Cartmell and Mr Smith. It is noted that Mr Hancock makes mention of the fall from the wheelchair, indicating that it was Mr Smith's movements of pulling back and forth that caused the patient to fall to the floor. However, the Appellant says it suspects the opinion offered by Mr Hancock in the file note could have been dictated to him.
- [61]In her decision letter, Ms Carroll addresses this concern very briefly and says 'I assure you that your suspicions are unfounded'. Ms Carroll offers no information about why there are two separate statements or on what basis the suspicions raised by Mr Smith and his representatives are unfounded.
- [62]The decision-maker also tells Mr Smith that the CCTV footage and the original incident report provide a greater weight of evidence than Mr Hancock's personal opinion. While I accept this to be the case, at the hearing of the matter, a representative of the Respondent said, '…in determining whether the decision-maker has reached a fair and reasonable decision, she hasn't just relied on the CCTV vision. She also had before her an eyewitness, and I draw your attention to the report of Klay Hancock'.[29] With reference to Mr Hancock's 'eyewitness statement', the Respondent's representative said, '…my simple point is that it is not just about the CCTV footage. There's also an eyewitness'.[30]
- [63]I'll note here that I have some concerns about Mr Hancock's file note of 27 June and Security Narrative or 'eyewitness report' forming part of the decision-maker's conclusions, particularly as they relate to subparagraph (f) of Allegation one. Mr Hancock's statement says '…Rob pushed chair which ended up going over his foot'. The CCTV footage shows that the chair did not go over the patient's foot. It touched the patient's foot and was then wheeled backwards away from this foot. It is possible that Mr Hancock constructed his statement by reference to the words said by the patient. But even if the patient said his foot had been run over, this was simply not true. The patient's foot was not run over. The CCTV footage of the event cannot be ignored when it clearly undermines Mr Hancock's evidence. I must say, it also seems unsurprising to me that the patient, clearly in a heightened state, claimed that his foot had been run over when it had not. The patient was already concerned about treatment he had received from other employees, this became the subject of his later complaint (which did not involve a complaint about Mr Smith's actions).
Mr Smith's response to the show cause notice
- [64]I have also reviewed the first show cause notice seeking a response to the allegation. I note that in that letter, Ms Carroll informs Mr Smith that she is considering two possible grounds for discipline which may arise if the allegation is substantiated. The first is that pursuant to s 91(1)(b) of the PS Act, Mr Smith may be guilty of misconduct. The second is that pursuant to s 91(1)(h) of the PS Act, Mr Smith may have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. The decision-maker specifically identifies cl 1.5 of the Code. Clause 1.5 requires that employees demonstrate a high standard of workplace behaviour and personal conduct. I note that the allegation and the particulars in the first show cause notice are the same as those set out in the decision and recorded above at [2].
Scope of appeal
- [65]It is clear from Mr Smith's show cause response and from the submissions, that Mr Smith does not deny particulars (a), (b) and (c). It is therefore not in dispute that Mr Smith was rostered to work on the day the events took place, that he was wheeling the patient at the time of the event and that as Mr Smith manoeuvred the wheelchair next to the waiting area chairs, the patient reached out to grab a waiting room chair.
- [66]Therefore, the issue in dispute in this appeal is whether it was fair and reasonable for the decision-maker to substantiate particulars (d), (e) and (f) and on that basis, substantiate Allegation one in its entirety. If it was fair and reasonable for the decision-maker to do so, the second matter which arises is whether it was fair and reasonable for the decision-maker to determine that this substantiated allegation gives rise to a finding of misconduct under the PS Act.
- [67]The Appellant's show cause response, prepared on his behalf by his representatives, makes clear that he denies particulars (d), (e) and (f) of Allegation one. I will consider each of particulars (d), (e) and (f) below.
Subparagraph (d) of Allegation one: Between 20:32:47 and 20:31:55 you attempt to remove the patient's grip of the chair, you jolt the wheelchair backwards in an abrupt action, immediately after the first 'Pull' you repeat the action of jolting the wheelchair backwards resulting in the patient falling from the wheelchair to the floor
- [68]The decision-maker's findings with regard to subparagraph (d) of Allegation one are set out in a series of dot points on page two of the decision letter:
- You partially admit to allegation one d) in that you attempted to remove the patients [sic] grip from the chair and that the patient fell from the wheelchair to the floor.
- You admit to pulling on the wheelchair as you state that you thought if you pulled on the chair the patient might let go of the red chair and you further claim that you felt this was necessary and reasonable. I am of the view that there was no requirement for you to remove the patient's hand from the red chair and that your actions in this instance were not necessary nor reasonable.
- The patient placed their hand on the red chair at 20:31:45 and within two (2) seconds at 20:31:47 you began pulling the wheelchair back.
- You partially deny allegation one d) discounting that your action of pulling the chair was abrupt.
- I consider the force you used to pull the chair back excessive and hold the view that you jolted the chair backwards in an abrupt action. I find your actions unreasonable in the circumstance as it appears that the wheelchair was located next to the chair and within an appropriate distance for the patient to exit and be easily transferred to the chair.
- I find your actions in this instance to be intentional as you admit that you pulled the chair back so that the patient would let go of the red chair.[31]
- [69]In the show cause response, the Appellant states that Mr Smith does not deny attempting to remove the patient's grip from the waiting room chair but does deny trying to do this by abruptly pulling the wheelchair back two times. Mr Smith does not deny that the patient fell from the chair. I note that Mr Smith submits that the patient was attempting to get out of the chair when he fell.
- [70]In his show cause notice, Mr Smith explains that as he turned the patient around in the wheelchair near the seating area of the waiting room, he realised there was not enough room between the wheelchair and the wall for patients to safely walk past. Mr Smith also states that this was further compromised due to a phone mounted to the wall. Mr Smith goes on to state that at 20:31:47, the patient reached out at full stretch and grabbed the back of the chair in the second row and that the patient was yelling and swearing. Mr Smith relays that he instructed the patient to let go of the seat, however, the patient refused.
- [71]Mr Smith then says that after viewing the video from 20:31:48, Mr Smith was able to see that the patient had planted both feet firmly on the floor. However, during the event, he was unaware the patient had planted both his feet firmly on the ground at this point. The Appellant submits to the decision-maker that at this time, he was looking to make a safe passage for other patients and the behaviour of the patient compromised the safety of the passageway for other users.
- [72]Mr Smith goes on to explain that he thought that if he pulled on the wheelchair, the patient might let go of the red chair, but the patient did not move. The Appellant says that after viewing the video, he saw that the patient was at this time leaning forward with his weight transferred to the front of the wheelchair with both feet on the ground. The Appellant submits to Ms Carroll that he could not see the patient's feet from behind the wheelchair and did not realise the patient had inched forward on the wheelchair as the two pulls happened quickly.
- [73]With reference to the CCTV footage, the Appellant says that at 20:31:49, he pulled the wheelchair for a second time and that at 20:31:50, the patient fell to the floor in a seated position. Mr Smith points out that he did not lose his balance when the patient fell from the wheelchair and that this is indicative of the lack of force exerted by him when pulling on the wheelchair. Mr Smith states that if he had used force, he would have been propelled backwards. Mr Smith also points out that when the patient fell to the floor, he and Mr Cartmell immediately went to his aid and helped him onto a seat in the third row.
- [74]The Appellant submits to the decision-maker that it was not his original intention to remove the patient from the wheelchair and that he thought it would be easier to leave the patient in the wheelchair in case the patient needed to be moved again.
- [75]Mr Smith goes on to tell Ms Carroll that he was unaware of the patient's ability to walk and that had he known the patient was mobile, he would have asked him to get out of the wheelchair and to take a seat in the Emergency Department and that this would have been a better option. The Appellant states that the patient was uncooperative and was yelling and abusing various people. Mr Smith considered the patient would not have responded to that request either. The Appellant points out that all of this happened within about 10 seconds while quick decisions were being made in a stressful environment.
- [76]Finally, with regard to the allegation, the show cause response states:
Mr Smith believes it was his action of pulling the wheelchair back and the action of the patient gripping the arm of the stationary chair that caused the patient to fall to the floor. He has not denied this position however he would like you to consider the full context of the situation.
Mr Smith has had time to reflect on the issue of the patient falling to the floor and would like to take this opportunity to acknowledge and apologise for the incident and any harm it may have caused the patient. Whilst he admits he is not perfect; this action does not truly represent his usual standard of care.[32]
- [77]On the basis of the material available to me, including Mr Smith's admissions as to his actions, I find that it was fair and reasonable for the decision-maker to establish, on the balance of probabilities, that Mr Smith moved the wheelchair backwards twice using jolting movements. Mr Smith confirms that he did so in an attempt to get the patient to release his grip from the red chairs. However, while I am satisfied that Mr Smith did act as alleged, I am not satisfied that it was this action of Mr Smith alone that, as subparagraph (d) of Allegation one states, resulted 'in the patient falling from the wheelchair to the floor'. I observed the patient's actions in grabbing the chair in what appeared to be an attempt at countering the force of the Appellant's pushing of the wheelchair in a forward direction. I cannot conclude on the balance of probabilities that the patient's own actions and behaviour did not contribute to him falling from the chair. The patient was clearly placing his feet on the floor as the wheelchair was moving. The patient reaches out to grab the chair. In the minutes after all of this takes place, the patient gets up and walks around, indicating that the patient would have been able to get out of the wheelchair and move to the red seat by himself, making his behaviour while in the wheelchair unreasonable. The patient's actions contributed to the fall. In those circumstances, I reject that subparagraph (d) of Allegation one to the effect that it was Mr Smith's actions alone which caused the fall. Therefore, I do not accept that a finding pursuant to subparagraph (d) was fair and reasonable.
The substantiation of subparagraph (d) of Allegation one, as it is worded in the show cause and decision notice, was not fair and reasonable
- [78]It was not fair and reasonable on the balance of probabilities for the decision-maker to substantiate this aspect or particular of Allegation one without acknowledging that the patient's own actions were contributory to the fall.
- [79]I find it would be open to the Respondent to put this allegation to Mr Smith in terms that his actions contributed to the patient's fall.
Subparagraph (e) of Allegation one: You intentionally tipped the patient from the wheelchair resulting in the patient falling from the wheelchair and landing heavily on the floor.
- [80]The decision-maker sets out her findings with regard to Allegation 1(e) in a set of dot points on page two of the decision letter:
- You partially deny allegation one e) by claiming that you failed to tip the patient out of the wheelchair; however, it is clearly evident within the CCTV footage that during each pull, your arms move forward and then back suddenly, and your elbows are seen to move in an upward direction, denoting a tipping motion, demonstrating your intent.
- I refer to your written statement dated 6 July 2023 in which you state that the patient grabbed the back of the waiting room chair and slipped out of the chair which is contradictory to your response dated 30 November 2023 and this demonstrates an intentional lack of admission of your own actions which caused the patient to fall onto the floor.[33]
- [81]In the show cause response, Mr Smith does not deny that the patient fell from the wheelchair to the floor, but he does deny intentionally tipping the patient from the wheelchair. Mr Smith denies that the patient fell from the chair as a result of the wheelchair being 'tipped'.
- [82]Consistent with submissions in this appeal, Mr Smith's show cause notice points out that a review of the CCTV footage shows that the wheels of the wheelchair do not leave the floor and that this indicates that no 'tipping' took place.
- [83]Consistent with submissions in this appeal, Mr Smith submits that wheelchairs are difficult to 'tip' as the small front wheels pivot in all directions and cannot be locked. The Appellant says that wheelchairs are designed to not tip forward as a safety measure for wheelchair users. Mr Smith's show cause response states that it takes 'considerable force to 'tip' a wheelchair with or without a person seated in the wheelchair'.
- [84]Mr Smith's show cause notice states that executing a tipping action with the requisite upward force would pose a challenge and, as a result, would be quite conspicuous in the CCTV video. I cannot identify from the CCTV footage any evidence of the wheelchair being tipped or that the patient's fall resulted from being tipped out of the wheelchair.
- [85]As noted above, I do not think it is possible to comfortably assert that the patient fell from the wheelchair solely because of Mr Smith's actions. In my view, the patient's behaviour in grabbing the chair and attempting to stand as the chair was in motion were significant contributors to the fall. I also agree with Mr Smith's contention in the show cause notice that subparagraphs (d) and (e) of Allegation one are difficult to reconcile.
- [86]I have viewed the CCTV footage and I have considered the submissions made regarding subparagraph (e) of Allegation one. The footage does not show that the patient was 'tipped' from the wheelchair. The footage does not show the wheelchair tipping. I also note that subparagraph (d) of Allegation one alleges that the cause of the patient's fall from the wheelchair was the 'pulling' motion which Mr Smith admits to and says he was doing for the purpose of getting Mr Smith to let go of the chair. As I have found above, I think the most likely cause of the patient's fall was a combination of Mr Smith's actions in pulling the wheelchair and the patient's own actions.
- [87]The patient did not fall from the wheelchair twice. I do not accept that he was tipped from the wheelchair, as the evidence does not support such a finding. I do not consider it fair and reasonable for the decision-maker to make such a finding. It appears from the decision letter that this allegation was, to some extent, established on the basis of the decision-maker's belief that Mr Smith moved his elbows in an upward direction, 'denoting a tipping motion, demonstrating your intent'. This part of the allegation does not state that Mr Smith simply had an intent to tip the patient from the wheelchair and that while this did not happen, it was the act of attempting to tip the wheelchair which was being put to him. The allegation says that Mr Smith 'intentionally tipped the patient from the wheelchair'. Upon a review of the CCTV footage, this did not occur.
Subparagraph (f) of Allegation one: At approximately 20:32:09 you leave the waiting room with the empty wheelchair, as you leave you intentionally ran over the patient's foot with the empty wheelchair
- [88]The decision-maker sets out her findings with regard to subparagraph (f) of Allegation one in a series of dot points on page two of the decision letter:
- You partially deny allegation one f) however the CCTV footage evidences that the wheelchair makes contact with the patient's foot. I am unable to ascertain if you ran over the patient's foot, nevertheless, I am of the view this was unreasonable as you were some distance from the patient's foot and had clearance to turn the wheelchair away from the patient to exit this area.
- It is evident from the CCTV footage that the contact you made with the patient's foot was intentional as at 20:32:04 you pull up the break [sic] of the chair, you point it towards the left of the patient and at 20:32:06 you turn the chair right towards the patient where you make contact with his foot.
- The patient's foot did not move from the time he was seated in the chair, and you had ample room to push the chair in another direction as to avoid the patient's foot.[34]
- [89]The Appellant denies that he intentionally ran over the patient's foot with the empty wheelchair.
- [90]In the show cause notice, the Appellant tells Ms Carroll that Mr Smith does not deny touching the patient's foot with the wheelchair but denies that this was an intentional action. Additionally, the show cause notice draws Ms Carroll's attention to the fact that the CCTV footage clearly indicates that he did not 'run over' the patient's foot. The Appellant says that when the patient shouted words to the effect that he had run over his foot, Mr Smith stopped and pulled the chair backward and moved away from the patient. The show cause response observes that the wheels of the wheelchair remained behind the patient's foot and leg.
- [91]The show cause notice also points out that neither of the Respondent's eyewitnesses were able to observe what had happened with sufficient visibility, however they did hear the patient call out that Mr Smith had run over his foot.
- [92]I have discussed this matter above at [63] and rely on those observations about Mr Hancock's statement and my impression of the CCTV footage here.
- [93]The decision-maker states that she is 'unable to ascertain' if Mr Smith ran over the patient's foot. I have viewed the CCTV footage and considered all the submissions and it is clear to me that Mr Smith did not run over the patient's foot.
- [94]What appears to occur in the decision letter is that Ms Carroll, 'unable to ascertain if Mr Smith ran over the patient's foot' determines that any contact with the patient's foot was unreasonable in circumstances where there was clearance to turn the wheelchair away. Ms Carroll also determines that upon her viewing of the footage, the contact made with the patient's foot was 'intentional'.
- [95]I do not think it is possible to establish on the balance of probabilities that any contact made between the front wheel of the wheelchair and the patient's foot was intentional. I have viewed the footage, seen photos of the area and considered all submissions before me. I have also taken into account that these matters occurred over a number of seconds and that the patient was acting erratically. Mr Smith stops and wheels the chair backwards as soon as he becomes aware that contact had been made with the patient’s foot. If the Appellant intended to run over the patient’s foot, he certainly could have done so.
- [96]Mr Smith did not run over the patient's foot as alleged. I am not satisfied that it is possible to establish on the basis of the available material that any contact of the wheelchair with the patient's foot was 'intentional'. In any case, the allegation is not that Mr Smith touched the patient's foot, the allegation is that that he ran over the patient's foot. It was not fair and reasonable for the decision-maker to determine that subparagraph (f) of Allegation one was substantiated.
The substantiation of subparagraphs (e) and (f) of Allegation one was not fair and reasonable
- [97]For the reasons given above, I am not satisfied that it was fair and reasonable for Allegation one to be substantiated in circumstances where there was reliance on particulars (e) and (f). I do not think the evidence supports a decision, made on the balance of probabilities, that Mr Smith intentionally tipped the patient from the wheelchair. Further, the evidence does not support a decision made on the balance of probabilities that Mr Smith intentionally ran over the patient's foot.
It was not fair and reasonable to substantiate Allegation one
- [98]Allegation one is the sum of its parts. It is a very serious allegation as it involves a physical assault on a patient by the Appellant. For the reasons I have outlined above, a finding that Allegation one is substantiated is not fair and reasonable on the basis that particulars (e) and (f) cannot be made out on the basis of the available evidence.
- [99]Subparagraph (d) of Allegation one is different in that Mr Smith has admitted that he did perform these actions and has provided reasons explaining why he did what he did. However, it would not be fair and reasonable to find that Mr Smith's actions alone caused the patient to fall from the wheelchair. It is a matter for the Respondent to consider whether they pursue the matters forming the basis of subparagraph (d) of Allegation one in a reframed show cause letter.
The disciplinary ground finding
- [100]Given I have determined that it was not fair and reasonable to substantiate Allegation one, it follows that the finding of misconduct is set aside. I will not address submissions on this matter here.
The decision is set aside, the matter is returned to the decision maker with a copy of the decision on appeal
- [101]For the reasons set out above from [59]–[100], I am setting the decision aside and returning the matter to the decision-maker with a copy of the decision on appeal.
- [102]It is a matter for the Respondent whether to pursue the actions taken by the Appellant in moving the wheelchair backwards twice, thereby contributing to the patient's fall to the floor. However, the allegations regarding tipping the patient out of the wheelchair and running over the patient's foot are not capable of substantiation and cannot give rise to grounds for discipline.
Order
- [103]I make the following order:
- Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision regarding Allegation one is set aside and returned to the decision-maker with a copy of the decision on appeal.
Footnotes
[1] Decision letter dated 12 December 2023, 2.
[2] Decision letter (n 1) 4.
[3] Ibid.
[4] On the evening the incidents relevant to this matter took place, Mr Smith was working with two colleagues, Mr Hancock and Mr Cartmell.
[5] Appellant’s further submissions in support filed 16 January 2024 [11].
[6] Appellant’s further submissions filed 3 April 2024.
[7] Respondent’s further submissions filed 10 April 2024.
[8] Appellant’s further submissions in reply filed 12 April 2024.
[9] Industrial Relations Act 2016 (Qld) s 562B(3).
[10] The Appellant, Mr Smith, is represented by the Australian Workers’ Union ('the AWU'). The AWU prepared filed material and submissions on his behalf. Throughout this decision, references to the Appellant's submissions and materials should be understood to be references to the materials and submissions produced by the AWU on the Appellant's behalf as his representatives.
[11] Appellant's Appeal Notice filed 21 December 2023, Attachment 1, [5].
[12] (1938) 60 CLR 336.
[13] Directive 05/23: Discipline, 'Definitions'.
[14] T1-15 L7-L11
[15] T1-15 L13-L20.
[16] T1-15 L40 – T1-16 L13.
[17] T1-17 L36.
[18] T1-18 L8.
[19] T1-19 L1-2.
[20] Respondent’s submissions filed 30 January 2024, 2.
[21] Respondent's submissions (n 20) 2-3.
[22] Respondent's submissions (n 20) 3-4.
[23] Respondent's submissions (n 20) 5.
[24] T1-21 L28-L29
[25] T1-21.
[26] [2020] QIRC 032 ('Coleman').
[27] Ibid [62].
[28] Respondent's Further Submissions filed 10 April 2024, 2.
[29] T1-21 L30-L34.
[30] T1-22 L14-L15.
[31] Decision letter (n 1) 2.
[32] Appellant's Appeal (n 11), Attachment RS-02, 4.
[33] Decision letter (n 1) 2.
[34] Ibid.